Opinion
June 27, 1983
In a negligence action to recover damages for personal injuries, defendant Frances Wazeter appeals from so much of an order of the Supreme Court, Westchester County (Gagliardi, J.), dated July 12, 1982, as denied those branches of her motion which sought (1) to vacate the note of issue and statement of readiness and to strike the case from the Trial Calendar, and (2) leave to depose Alexander Prema, a nonparty witness. Order reversed, insofar as appealed from, with costs, and those branches of appellant's motion which sought leave to depose Alexander Prema, and to vacate the note of issue and statement of readiness and to strike the matter from the Trial Calendar are granted. It is our opinion that Alexander Prema may be in exclusive possession of facts and information which bear directly upon the ability of the appellant to adequately prepare her defense in this matter. He is the plaintiff's brother. He resided with the plaintiff prior to, during and after the accident alleged herein, including the 41-day period immediately following the alleged accident during which plaintiff did not seek medical aid, and he presumably has knowledge of plaintiff's pre-existing epileptic condition and a hip injury which plaintiff incurred prior to the accident. These factors constitute special circumstances warranting a deposition of Alexander Prema as a nonparty witness because it appears that he is exclusively in possession of information which is material and necessary to appellant's defense (CPLR 3101, subd [a], par [4]). The note of issue should be vacated and the matter should be stricken from the Trial Calendar, since it will not be ready to be tried until disclosure has been completed (see 22 NYCRR 675.4 [a], [b]). Damiani, J.P., Weinstein, Niehoff and Boyers, JJ., concur.